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Philippe Dufresne
View Philippe Dufresne Profile
Philippe Dufresne
2018-03-01 11:50
Mr. Speaker, members of the Board of Internal Economy, thank you very much.
I am pleased to be here to present our proposal to adopt a new policy on the reimbursement of legal fees incurred by members of Parliament. The new part is that, in certain circumstances, it also applies to employees, as we will be able to discuss.
Under the leadership of the Speaker, we have looked at this policy on legal fees for the purpose of protecting employees. We want to ensure that Parliament is a harassment-free workplace and that this policy on legal fees reflects the core values of human rights and victim protection, among others.
The purpose of the new policy we are proposing is first to update the information and expand the criteria for the reimbursement of legal fees incurred by members.
Among other things, we want to make it very clear that legal fees will not be reimbursed if a member of Parliament is deemed at fault, that is, if a court or decision-maker determines that there has been a violation of the law, such as in instances of harassment. This principle will be made very clear.
We also seek to increase the proactive disclosure of the spending of public funds as part of those reimbursements. What is certainly new is that we want to provide additional support that aligns directly with the approach to preventing and resolving harassment situations in the workplace on Parliament Hill. We are proposing measures to ensure that employees and members affected by harassment are on a level playing field as much as possible.
We want to provide more support at all stages of the process. We want to provide it at the beginning of a situation, when a matter of harassment is raised. We also want to provide financial support to employees and MPs to obtain initial legal advice. In the same way, we want to provide support at the end of the process, if the allegations are confirmed.
This new policy that we are putting forward is very much designed to provide greater protection from harassment and to provide greater clarity in terms of the criteria that would apply for reimbursement of legal fees.
This occurs in situations where members must seek legal counsel from the outside. My office is legal counsel to the institution, and we provide legal services to members, but in certain circumstances, including harassment allegation or litigation, members must seek outside legal counsel. In those situations, they must seek reimbursement of those fees from the board.
The current practice of the board with respect to the reimbursement of legal fees is very much to focus on whether the litigation flows or the legal matter flows from the member's parliamentary functions. The reimbursement is made at rates pre-established by the board, which are pegged to those of the Department of Justice. They are reviewed by my office and a recommendation is made by my office as to the appropriateness of the reimbursement and it's done on a case-by-case basis.
The expenditures for those reimbursements of legal fees are reported annually in the Public Accounts of Canada. That is the current practice.
What we are proposing to you today is to include additional criteria to achieve those principles, purposes, and objectives that I've highlighted at the outset, which are, again, to ensure that a member is not reimbursed for his or her legal fees in a situation where the allegations have been substantiated. A member who is found to have harassed an employee, sexually or otherwise, would not see their legal fees reimbursed. The board would not be financing this legal representation for members in such cases.
We would want to provide greater disclosure of the funds expended. In addition to the public accounts annually, we would provide quarterly reports. The board would provide quarterly reports of the amounts including the number of requests. That would provide greater information in terms of the public funds expended for those purposes.
In cases of harassment, we would provide additional measures to support employees and members involved in situations of harassment. We've heard time and time again “in the context of harassment”. Before I was appointed law clerk, I was a human rights lawyer for 15 years. It is fundamental to have initial support and adequate information so that complainants, individuals who feel they have been the victims of harassment, understand the process and understand their rights. I think Madame Brosseau, in one of her earlier questions, alluded to that—namely, to what extent are we accompanying complainants in the initial stages? We would propose additional support for members and employees in such cases specifically, with at the outset financial support and at the end of the process the possibility of having legal fees reimbursed.
Specifically, we propose to include the following eligibility criteria when members make a request for their legal fees. This would be the general approach in all cases. The member cannot have initiated the legal proceedings. This is meant to be support to a member who is a defendant, not a plaintiff. The legal fees must be incurred in the discharge of the member's parliamentary function. That has to remain, because that is the underlying condition for support from the board. The request for reimbursement would need to be made at the conclusion of the proceedings. This is so that the board can have all the information, in particular to assess the next criterion, which is that the allegations against the members have not been substantiated. If the allegations are substantiated by a decision-maker, then the legal fees would not be reimbursed. If they have not been substantiated, then the board could decide to reimburse them. The member needs to have complied with the legal fees policy, which is to say that they need to have kept my office informed of the process and developments in the matter. The last criterion is that the board must determine that reimbursement is appropriate in the circumstances. You retain this ability to determine that in a given case, even if the other criteria are met, it would be inappropriate to reimburse those legal fees.
Under this new approach, again, it's very clear that a member against whom allegations have been substantiated will not see their fees reimbursed. The board retains the discretion. I would continue to provide recommendations to the board in terms of approving such requests, and I would apply those criteria in all cases.
The reimbursement would continue to be at the rates pre-established by the board, which is to say no greater than at the Department of Justice and the Senate. Indeed, they could be reassessed periodically. Currently, they are certainly pegged at the rate of the Department of Justice.
The board would retain the ability to grant exceptions, as it does, generally, but we would propose, as a transparency mechanism, that if the board did that, this would be reported in the board's meeting minutes to reflect that an exception to the policy has been made. The reporting would continue, as I've indicated, in the public accounts. There would be additional disclosure of the aggregate amount of legal fees reimbursed to members and employees under the policy each quarter, including the requests for reimbursement.
With respect to harassment, we feel that additional support is warranted for complainants, employees and members, in cases of harassment, so we would propose, only for cases of harassment, an additional two measures or forms of support. One would be financial support of up to $5,000 for both a member and an employee in a situation of harassment. This would be for the purpose of obtaining independent legal advice at the outset. This would be managed by my office. The request would be made to me or via the Speaker. I would make the decision to grant or not that support of up to $5,000. The condition would be simply that it's a matter of harassment involving a member and an employee or involving two members.
This would not need to come to the board. It would provide early and flexible support for employees and members at the early stage, because it is helpful to have a better understanding of the rights, of the issues, of the likelihood of success, and so on. We feel this would be beneficial. It would provide support to people in a vulnerable situation at the outset of a case.
As an additional measure we would provide for—and this is very much to put the complainants and the members, the employees and members, on more of a level playing field—complainants to seek reimbursement of their legal fees in situations where the allegations have been substantiated. So there again that request would come at the end of the process, and a complainant who has seen her allegations upheld and substantiated would have the opportunity to seek reimbursement of legal fees. This is a very new measure, but we feel that it would provide additional support to individuals so that they feel confident that they can raise those in terms of process, and that this would support a harassment-free workplace.
That is the outline of the policy, which we feel would be beneficial and would provide greater clarity and greater support in preventing harassment. With this, I will open to your questions.
Philippe Dufresne
View Philippe Dufresne Profile
Philippe Dufresne
2018-03-01 12:04
In terms of your first question on parliamentary functions, that is very much the overarching theme with respect to appropriate uses of parliamentary resources made available to parliamentarians. In the members' bylaw that the board has adopted, it is very much the guiding principle that the resources made available to members are only for the carrying out of members' parliamentary functions. There is a definition of what does not constitute parliamentary functions: private interest matters, electoral re-election matters, support of a political party in elections, and so on. But it is a recognition that this is to support the work of members as parliamentarians, and so we feel that this legal fees policy should be no different in terms of its scope.
With respect to the $5,000 upfront, the purpose of this would be very much to provide this initial support to get legal advice, and it is separate from the request that could be made after the fact by a member or a complainant. They could both get up to $5,000 to get that advice, and then at the end of the process the member could make a request if the allegation had not been substantiated, and the complainant could make the request if the allegation had been substantiated. If there had been a settlement—and this is linked to your third question—both of them could apply to the board to seek reimbursement of their legal fees, and then it would be up to the board to decide whether and to what extent it's appropriate to do so, and the sixth criterion that talks about “appropriate in the circumstances” would become relevant. I would be providing you with my advice in the circumstances, having regard to the circumstances of that settlement.
In terms of paying for the amounts under the settlement, that's not what we're talking about here. We're talking about reimbursing legal fees that the parties incur. In terms of a settlement, and there's a provision for damages or amounts to be paid out, that's a separate matter. It has not been the board's practice to reimburse such settlements. In the last five years it has occurred on three occasions, and none of those involved allegations of sexual harassment. It's not the board's practice, and the board can certainly decide to make it a practice that it is not done in any case. But it is a separate point from this legal fees policy proposal.
In terms of disclosure, absolutely, confidentiality is an important element in dealing with these things, certainly from the complainant's perspective to feel free to raise these things in confidence. We'll be talking about this in the upcoming item in terms of how we have those discussions about reimbursing legal fees. In my view, it's important to have these discussions in private because we do not want to have the identity of complainants revealed in this context.
In terms of the publication of the expenses, the best practices are that you don't indicate the name of the parties involved, but rather the amounts.
View Candice Bergen Profile
Thank you. I have two things.
First of all, to Mark's point, I think he brought forward a very valid question. We should maybe decide that at least as of today, it will be for current MPs and current employees, but then possibly come back with some recommendations. Geoff, to your example of somebody who is defeated in an election, but whatever may have happened would have happened very currently, that's a different scenario than....
There are all kinds of different scenarios that are worth us looking at and then coming back with some recommendations.
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